CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF   Application No. 11468/85 by S.K. against the United Kingdom           The European Commission of Human Rights sitting in private on 15 October 1986, the following members being present:                 MM. J. A. FROWEIN, Acting President                   E. BUSUTTIL                   G. JÖRUNDSSON                   G. TENEKIDES                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE               Mrs G. H. THUNE               Sir Basil HALL               Mr.   F. MARTINEZ                 Mr.   J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 18 March 1985 by S.K. against the United Kingdom and registered on 21 March 1985 under file No. 11468/85;           Having regard to   -        the first report provided for in Rule 40 of the Rules         of Procedure of the Commission;   -        the observations submitted by the respondent Government         on 16 October 1985 and the observations in reply submitted         by the applicant on 21 February 1986;   -        the second report provided for in Rule 40 of the Rules of         Procedure of the Commission;   -        the submissions made by the parties at the hearing on         15 October 1986;           Having deliberated;           Decides as follows:   THE FACTS           The facts as they have been submitted on behalf of the applicant, a citizen of the United Kingdom born in 1954, by his representatives, Messrs.   Bindman and Partners, Solicitors, of London, may be summarised as follows:           A child, T, was born on 20 June 1982 to the applicant and H, to whom he was not married but with whom he had lived since October 1979.   The applicant, H and T lived together in London.   For two months following the birth the relationship between the applicant and H continued quite normally.   However, as a result of H's worsening mental health, the relationship seriously deteriorated thereafter, with various incidents of violence occurring.   One such incident gave rise to a conviction of the applicant for assault occasioning actual bodily harm to H on 23 February 1983, for which the applicant was conditionally discharged for 18 months.   At the end of May 1983, when T was 11 months old, H went with T to the country for a short holiday.   She never returned to cohabit with the applicant.           As a result of H's worsening mental health she had been largely incapable of caring for the physical and emotional needs of the baby for most of the period since his birth.   Consequently the applicant, who was umemployed during this 11 month period, was primarily responsible for the care of T during this time, a fact which was recognised in the subsequent proceedings by the Judge at first instance.           On 1 June 1983 H made her first contact with the Social Services Department of the relevant County Council ("the Social Services Department").   For part of the time up until 10 June 1983 she stayed at a Social Services Department children's home with T.   The Social Services Department were concered about H's behaviour and its effect on T.           On 10 June 1983 H was admitted as a compulsory patient under the Mental Health Act 1959 to a psychiatric hospital and on the same date a Place of Safety Order was obtained by the police under Section 28 (1) of the Children and Young Persons Act 1969 in respect of T.   As a result the Social Services Department became responsible for T and he was placed with foster parents, Mr. and Mrs.   A, on a short term basis.           On 13 June 1983 the applicant visited H in hospital in the presence of the Social Services Department social worker, Miss W.   He asked Miss W if he might take T back to London to take care of him there, but this request was refused.           On 16 June 1983 the Social Services Department were granted an interim Care Order in respect of T under Sections 28 (8) and 20 (1)(b) of the Children and Young Persons Act 1969 by the competent Juvenile Court.   The applicant attended court for this hearing.   However, due to his status as putative father of T the applicant was not recognised under the Children and Young Persons Act 1969 as a party to the Juvenile Court proceedings or as a parent or guardian with a right to participate in the proceedings in accordance with the Rules of the Magistrates' Court (Children and Young Persons) Rules 1970 which were the rules applicable at that time.           H was discharged from hospital and returned to London with the applicant.   However she immediately returned to the country.   Following the hearing also on 16 June 1983, and on many subsequent occasions up until 8 August 1983, the applicant asked Miss W for access to T, but was refused on the grounds that H did not want him to see the baby. The Judge in the subsequent wardship proceedings found that in June 1983 Miss W intended to try to effect a rehabilitation of T with his mother and then for both of them eventually to rejoin the applicant in London.           The applicant's parents had been in very close contact with T from his birth until he was taken to the country by H.   They had a close supportive relationship with the baby and were very attached to him.   On about 16 June 1983 the applicant's mother asked Miss W if she and the grandfather could take over care of T.   She also wrote a letter at about that time stating that there was always a home for T with his grandparents, that he was loved and wanted, and that he could always come back to them however long he was away.   This note was kept on the file of the Social Services Department as requested by the applicant's mother.   This offer, together with the offer to assist the applicant in caring for T was maintained throughout the Juvenile Court proceedings and the subsequent wardship proceedings.   The grandparents had no statutory rights to apply for care and control of or access to T until wardship proceedings were commenced.           The applicant first consulted solicitors on 7 July 1983, and up until about 5 August 1983 he and his solicitors understood that the Social Services Department intended to seek only a supervision order and to re-unite T with H.   The applicant hoped for a reconciliation with H and the baby.           On about 5 August 1983 it became clear that the Social Services Department intended seeking a full care order from the Juvenile Court at the hearing of the care proceedings fixed for 9 9 August 1983.   Because it was not possible for the applicant to be joined as a party to the Juvenile Court proceedings on 9 August, nor to present proposals which the Court had power to implement (although it would appear from the judgment at first instance that the Court in its discretion allowed him to give evidence), he issued wardship proceedings in the Family Division of the High Court on 8 August 1983 making T a ward of court and seeking care and control of the baby.   H and the relevant County Council ("the local authority") were made parties to the wardship proceedings.           On 9 August 1983 the competent Juvenile Court proceeded to hear the care proceedings under the Children and Young Persons Act 1969 and made a care order in favour of the local authority under Section 1 (2)(a) of that Act.   This order was made notwithstanding a letter sent to the Court by the applicant's solicitors informing the Court of the wardship proceedings and requesting an adjournment of the Juvenile Court proceedings pending a decision in the High Court.   In the wardship proceedings before the High Court the Social Services Department initially contested the High Court's jurisdiction, in view of the subsisting care proceedings.           In the subsequent wardship proceedings, the High Court found that, although by this stage the Social Services Department had begun to feel that they should not move T because he was settling so well with the foster parents, it was nevertheless clear that the Social Services Department were keeping open three options: first, to return T to his mother; secondly, to return T to the applicant and his family; and, thirdly, for T to remain with the foster parents, which constituted their interim decision.           For the purpose of exploring the second option the local authority then asked the social services department for the area in London where the applicant lived to make an assessment of the applicant's ability to care for T.   On 21 August 1983 the local authority permitted the applicant, who had at that time not seen T for 84 days, to see him at their offices for a period of one hour. Following that visit the applicant saw T on three further occasions at the local authority offices for a period of one hour on each occasion. He was not allowed to take T out by himself.           During July and August 1983 H led an itinerant life in the country and on 7 September 1983 she was admitted to the same psychiatric hospital for a second time under the Mental Health Act 1959.   She remained there for a few days before moving to a hostel providing after care for pyschiatric patients.           On 31 August 1983 the social services department for the area where the applicant lived provided the assessment requested by Miss W. This recommended that T should be returned to the applicant and his family.   Since this opinion differed from Miss W's own opinion it was agreed that the two Departments should obtain the decision of a Probation Officer as an independent arbitrator.   This step was never taken by Miss W, who did not refer to the conflicting assessment in her affidavit of 5 September 1983 in the wardship proceedings, a fact for which she was criticised by the High Court.           On 24 November 1983, on the applicant's summons in the wardship proceedings for access and directions, it was ordered that the Official Solicitor should represent H on the grounds of her mental disability.   The local authority also withdrew its objection to the High Court's jurisdiction.   It was also ordered that the applicant should have twice monthly access periods of two hours duration at the home of T's foster parents, and that he be able to take his parents with him on access visits if he wished.   Thereafter regular access proceeded on this basis until a final order was made in the wardship proceedings in June 1984.           On 10 January 1984 the care order in favour of the local authority was discharged but the local authority continued to have custody of T by virtue of the interim care order made in the wardship proceedings.   On the same day a case conference was held at which it was decided that the option of returning T to the applicant was not open and that T should remain permanently with the foster parents with whom he was already placed.   The High Court judge who subsequently heard the wardship application stated:   "I formed the impression that this decision was effectively the decision of Miss W, having regard to the composition of the group who considered the matter and the lack of any real contact by the others in the group with the parties (concerned).   It is also to be remembered that as early as November 1983 Miss W had thought it likely that the local authority could not put T with the applicant or his mother.   The foster father ... was aware in November or December 1983 that T either was not going to be or may not ever be returned to either of his parents".           The applicant was not informed of the case conference.           The case was fixed to be heard by the High Court for a substantive hearing of the care, custody and access applications on 19 January 1984.   However, on the evening before the hearing the applicant and his solicitors heard that it was proposed by the local authority that the foster parents should adopt T.   In view of this quite unexpected decision an adjournment was requested on the applicant's behalf.   On 10 February 1984 the applicant nevertheless applied to expedite the adjourned hearing, which was held on 1 to 11 May 1984.           Judgment was reserved until 25 June 1984 when the Deputy Judge of the High Court made a final order that T should remain a ward of court during his minority or until further order, that care and control of T should be granted to his foster parents, Mr. and Mrs.   A, and that the applicant should have access to T twice a month for periods of three and a quarter hours at the foster parents' home and that H should have reasonable access.           In reaching this conclusion the Judge weighed at length the options of granting care and control to the applicant, but concluded on balance, that although he had shown some considerable abilities in caring for T during his first year, the subsequent year spent with the foster parents and the stability and security which their family had provided had established a more reliable home environment for the child.   In so doing he expressly stated as follows:   "I have been reminded by counsel ... that my paramount consideration should be the present and future welfare of T, and ... that even if the [local authority's] conduct at any stage was misguided or inappropriate I should not allow such matters to influence my mind ...   I do not pass any judgment as to the behaviour of the [local authority] in the period November 1983 to January 1984.   It is sufficient for me to say that Miss W candidly admitted that it would have been better to have referred to the aspect of adoption in her November affidavit.   I consider that my function is to look at the the current situation of T and consider his future.   The primary question is where he is to live and who is to care for him?"           The applicant's appeal against this decision to the Court of Appeal was dismissed on   25 September 1984.   The Court of Appeal accepted the unchallenged criticisms of the conduct of the case by the local authority and in particular the rigidity of Miss W, her reluctance to consider the possibility of T being with the applicant and the consequential decision by the local authority that T should be adopted.   Nevertheless the Court held that there was sufficient evidence before the trial judge to fully justify his conclusion that at the time of the hearing it was in T's best interests that he remain with the foster parents.   The Court continued that, although the issue was not strictly before it, this would not appear to be a case in which adoption should be contemplated and was one in which the applicant's access to T should be encouraged and nurtured.   The applicant's advisers considered that a further appeal to the House of Lords would have been without any hope of success, and so no such appeal was made.   COMPLAINTS           The applicant complains of a breach of Articles 6, 8, 13 and 14 of the Convention.           As regards Article 6 he argues that a right to apply for the custody or care and control of, and access to, a child is a "civil right".   He claims that he had no right to make such an application once the police had obtained the Place of Safety Order and the local authority had commenced care proceedings pursuant to the Children and Young Persons Act 1969.   The applicant accepts that he did have a right to make such an application in the context of wardship proceedings, but emphasises that such a right is subject to limitations once the Place of Safety Order had been granted and the care proceedings had been begun.   The applicant therefore contends that he did receive a fair hearing within a reasonable time by an independent and impartial tribunal established by law as guaranteed by Article 6   para. 1.   As regards the delay he points out that it took almost nine months from the commencement of wardship proceedings to the final hearing, that he had been denied regular acces to T (and he did not see the child for 84 days following his removal by his mother) and that at the date of judgment in the wardship proceedings T had been away from him for more than one year.   He argues that the effect of this was to prejudge his claim for care and control of the child as against that of the foster parents.           The applicant further contends that he, H and T lived as a family unit for a substantial period of time notwithstanding that he and H were not married.   He argues that the actions of the local authority in refusing to allow the applicant and his parents to assume care and control of T and in denying him access to the child for 84 days failed to respect his family life in breach of Article 8 para. 1 and that these actions cannot be said to have been "necessary in a democratic society" pursuant to Article 8 para. 2.   He further argues that the procedures leading to the above decisions, based as they were on the opinion of one social worker, Miss W, provided insufficient safeguards and showed a total lack of respect for the essentials of "family life".           The applicant also complains that the Place of Safety Order and the subsequent interim care order in favour of the local authority removed whatever parental rights he had regarding T.   His only remedy was to issue wardship proceedings, which he duly commenced, but following the decision of the House of Lords in A. v.   Liverpool City Council such proceedings no longer provide an effective remedy for the past mistakes of the local authority.   The applicant claims that he did not therefore have access to an effective remedy before a national authority in breach of Article 13 as regards his claim to be entitled to care and control of, or access to T.           Finally, the applicant contends that the rights guaranteed by Articles 6, 8 and 13 of the Convention are not accorded to him in part by reason of his sex and/or his marital status, in breach of Article 14.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 18 March 1985 and registered on 21 March 1985.           On 10 July 1985 the Commission commenced its examination of the admissibility of the application and decided to bring the application to the notice of the respondent Government pursuant to Rule 42 (2) (b) of its Rules of Procedure, and to request them to submit observations in writing on its admissibility and merits.           The observations of the respondent Government were submitted on 16 October 1985 and the applicant's observations in reply were submitted after two extensions of the time limit imposed by the President of the Commission, on 21 February 1986.           The Commission resumed its examination of the admissibility of the application on 13 May 1986 and decided, pursuant to Rule 42(3)(b) of its Rules of Procedure to invite the parties to make further oral submissions on the admissibility and merits.           At the hearing, which was held on 15 October 1986, the parties were represented as follows:   The Government           Mr.   I. Hendry            Agent         Mr.   James Holman         Counsel         Mr.   R. Aitken            Department of Health and Social                                 Security, Adviser         Ms.   P. Barrett           Department of Health and Social                                 Security, Adviser     The applicant           Mr.   Stephen Bellamy      Counsel         Mr.   Nicholas O'Brien     Adviser         Ms.   N. Angell            Solicitor, Bindman & Partners,                                 Adviser.           The applicant was present in person.     SUBMISSIONS OF THE PARTIES   Submissions of the respondent Government           The Facts           The respondent Government contend that the report prepared by the social worker from the social services department for the area where the applicant lives cannot accurately be referred to as an "assessment" in view of the limited contact which the social worker concerned had with the applicant and the child.   Further the Government contend that it is unjustified to criticise Miss W for not referring to this report in her affidavit of 5 September 1983 since the local authority were contesting the jurisdiction of the High Court in wardship, and the sole purpose of the affidavit in question was to obtain the Court's leave for T to be taken out of the jurisdiction for a holiday.           The respondent Government further point out that reference was made to the possibility of T being adopted at the hearing concerning access in November 1983.   In view of this, and the terms of Miss W's affidavit of 29 November 1983, they contest that the local authority's decision in January 1984 to encourage the foster parents to adopt T was "quite unexpected".           In addition the respondent Government refer to the comments regarding the applicant's capabilities and character made by the judge at first instance, which suggest that the applicant would be inclined to be stubborn and dogmatic and did not fully appreciate the strains of parenthood of a young child as opposed to the care of a baby.   In addition the trial judge accepted that Miss W saw the applicant regularly between June and August 1983 which gave her "an opportunity ... to form some impression of him".           The respondent Government finally point out that the judge giving the leading judgment of the Court of Appeal revised his judgment in the light of remarks made by counsel for the local authority in answer to criticisms made of Miss W's conduct of the case and the Court did not accept the "unchallenged criticisms" which had been made of such conduct.           The domestic law and practice           The application raises issues relating to the compulsory placing of a child in care by order of the Juvenile Court under the Children and Young Persons Act 1969 (the 1969 Act), the wardship jurisdiction of the High Court, and the guardianship legislation.           Place of safety orders under the 1969 Act   The decision to place a child in a place of safety is taken on an application to the Juvenile Court, providing that the court is satisfied that conditions of risk apply to the child.   The child may then be detained in a place of safety for a maximum of 28 days from the Court's order.           Under Section 28 (3) of the 1969 Act, a person who detains any child under a place of safety order must, as soon as practicable after doing so, inform the child, and any parent or guardian of the detention and the reason for it.   "Parent" does not include the putative father of an illegitimate child.   The word "guardian" includes, by virtue of Section 107 (1) of the Children and Young Persons Act 1933 and Section 70 (1) of the 1969 Act, a person who has for the time being the charge of or control of the child or young person.           During the 28 days period an application may be made under Section 28 (6) of the 1969 Act for an interim care order.   If the local authority or another interested person wishes to retain the child in protected surroundings after the 28 day period, it is necessary to make the child a ward of court, or begin care proceedings under Section 1 of the 1969 Act, applying for an interim order under Section 2 (10) of the Act, or to apply under Section 28 (6) of the 1969 Act.           On 16 June 1983 T became subject of an interim care order in accordance with Section 28 (6) of the 1969 Act.   Such an order is also limited to a maximum of 28 days, although an interim care order made under Section 2 (10) of the 1969 Act may be renewed.           The local authority may apply to the Juvenile Court for a child to be placed in its care.   Under Section 2 (2) of the 1969 Act, the local authority is in certain circumstances under a duty to do so. The grounds of such an application are set out in Section 1 (2) (a) - (f).           In applying to the Juvenile Court, the local authority must show one of the grounds set out in Section 1 (2) (a) - (f) and show that the child is in need of care or control which it will not receive unless one of the orders specified in Section 1 (3) of the 1969 Act is made.           The effect of a care order under Section 1 (3) (c) of the 1969 Act is that the rights of the parents, except the rights to agree to adoption and to influence the child's religious beliefs, are taken from them and given to the local authority.   The powers and duties of the local authorities with respect to children and young persons committed to care are contained in Section 29 of the 1969 Act which is now reproduced in Sections 10, 11 and 12 of the Child Care Act 1980, which has subsequently come into force.           Care proceedings (unless under the ground in Section 1 (2) (f) of the 1969 Act) are civil proceedings, governed by the Magistrates' Courts (Children and Young Persons) Rules 1970 (SI 1970/17/92).   The parties to the proceedings are the local authority and the child, who may be represented, and receive legal aid in appropriate cases.   The child may have his parent or guardian conduct his case on his behalf either directly or indirectly through a lawyer.   However, where the Court thinks that there may be a conflict of interests between the child and the parent or guardian, the court may make an order that those interests be separately represented.   At the time of the relevant proceedings in June 1983 this procedure for separate representation had not been enacted, with the result that the natural parent or guardian was not entitled to legal aid in their own right in the proceedings.   To the extent that they were not acting on behalf of the child, they had a right to attend the hearing of an application for an interim care order or a care order and give or call evidence challenging evidence made against them by the local authority.   In practice, the Juvenile Court had and has inherent jurisdiction to allow separate legal representation in such cases (R v.   Gravesham Juvenile Court ex parte B (1982) 4 FLR 312) and could as a matter of practice control its own proceedings, for example allowing cross examination of local authority witnesses (R v.   Milton Keynes Justices ex parte R (1979) 1 WLR 1062).           Other persons who are entitled to attend care proceedings include any foster parent or other parent with whom the child has had his home for a period of not less than six weeks ending not more than six months before the date of the application if their whereabouts is known to the applicant for the care order.   The Junvenile Court may allow the participation of such persons as may be appropriate in any case.           An appeal lies from the Juvenile Court to the Crown Court under Section 2 (12) of the 1969 Act.   The Crown Court reviews the decision by way of a rehearing.   The local authority has no general right of appeal where no order is made under Section 1 (3) of the 1969 Act, or where the one made was not the one sought.   Appeal on a point of law lies to the Divisional Court of the High Court.           Wardship           The jurisdiction to make a child a ward of court originated in the feudal concept of the Crown as "parens patriae" and this jurisdiction is now exercised by the Family Division of the High Court.   Where a child becomes a ward of court the Court assumes responsibility for all aspects of his welfare.   It may make orders as to where the child is to live, with whom, who may have access to him, and as to his religion, education and marriage if under 18.           In accordance with Section 1 of the Guardianship of Minors Act 1971, in determining which orders to make, the High Court must have regard to the child's welfare as the "first and paramount consideration".   The Court may grant "care and control" of the child to a person or body, including for example the local authority, which must then act on the Court's directions.   A contemporaneous supervision order may also be made in favour of another person or body, unless the local authority has been given care and control of the child by virtue of Section 7 (2) of the 1969 Act.   The child remains a ward until either he attains his majority, or the Court orders that he shall cease to be a ward, and no important step can be taken in the child's life without the court's consent.           Anyone who can show an appropriate interest in the child's welfare can apply to make a child a ward of court.   Section 41 (1) of the Supreme Court Act 1981 provides that no child may be a ward of court other than by a court order, which is obtained by an application for an originating summons in the High Court.   The procedure is set out in Order 90 of the Rules of the Supreme Court, which have the result that a child becomes a ward of court immediately the originating summons is issued, but that, unless an appointment for the hearing of the summons is made within 21 days, the wardship automatically lapses.           The first appointment will be before the Registrar who gives directions as to what is to be done before the case may be heard by a judge, including an order as to access if the person with physical custody of the child agrees.   An appeal lies from the Registrar to a judge in chambers.           The child may be represented in wardship proceedings by a guardian ad litem, usually the official solicitor, who is entirely independent of the executive.   The object of appointing the official solicitor is to give the court the assistance of an experienced and impartial person, whose interest is the child's welfare.           Subject to means, legal aid is available for the representation of parents' interests in wardship proceedings in the High Court.   They may also apply to accelerate the proceedings under Order 43 of the Rules of the Supreme Court.   Appeal lies from the High Court to the Court of Appeal, and to the House of Lords, but legal aid is not normally available for defendants in ex parte applications which are not initiated by the person concerned.           While a child is a ward of court, any party may bring the case back before the Court for a variation of the existing order or for directions as to its interpretation or application.           Wardship therefore provides an entirely separate jurisdiction from that of the Juvenile Court concerning the care of a child under the 1969 Act.   The relationship between the responsibilities for the care of the child imposed on local authorities by statute under the 1969 Act and otherwise, and those exercised by the High Court under the wardship jurisdiction is set out in the judgment of Lord Wilberforce in A v.   Liverpool City Council (HL (1981) 2AER p. 385).           Lord Wilberforce reviewed first the scope of the statutory responsibilities of the local authority, in respect of which he held that there was no general reviewing power of their exercise by the court.   He went on to add "this is not to say that the inherent jurisdiction of the High Court is taken away.   Any child, whether under care or not can be made a ward of court ...   In cases ... where the court perceives that the action is within the sphere of discretion of the local authority it will make no order and the wardship will lapse.   But in some instances there may be an area of concern to which the powers of the local authority, limited as they are by statute, do not extend.   Sometimes the local authority itself may invite the supplementary assistance of the court.   Then the wardship may be continued with a view to action by the court.   The court's general inherent powers are always available to fill gaps or supplement the powers of the local authority; what it will not do (except by way of judicial review where appropriate) is to supervise the exercise of discretion within the field committed by statute to the local authority".           Hence the wardship jurisdiction is available where there is a lacuna in the relevant statutory provisions which restrict a local authority's decision-making, where something wholly exceptional requires the court's intervention, and to review action by the local authority which is so unreasonable as to require the intervention by the court.   This last possibility is the availability of judicial review as to the exercise of the administrative discretion vested in the local authority.           Guardianship           Under Section 14 Guardianship of Minors Act 1971 (the 1971 Act) the father of an illegitimate child may apply to the High Court, County Court or Magistrates' Court for custody or access to a minor. Section 9 (1) of the 1971 Act states:           "The Court may, on the application of the mother or father         of a minor (who may apply without a next friend)         make such order regarding -           a.       the legal custody of the minor;           b.       the right of access to the minor of his mother                 or father as the court thinks fit having                 regard to the welfare of the minor and the                 conduct and wishes of the mother and father."           By virtue of Section 14 of the 1971 Act, this provision applies equally to an illegitimate minor, and the reference to father and mother or parent of such a child is construed accordingly.   Admissibility and merits           Article 6           The respondent Government submit that the applicant had an opportunity, which he did not take, to make representations to the court having jurisdiction in the care proceedings.   Further, the applicant could have applied for custody and access to the court under guardianship legislation, which makes specific provision for the application by fathers of illegitimate children.   He further had an opportunity, which he did use, to bring the matter before the wardship court.   In view of these opportunities, the respondent Government contend that the applicant had available to him access to court as required by Article 6 para. 1 of the Convention for the determination of his civil rights concerning the child.           Although the applicant would not be considered as a "parent" in the context of the care proceedings before the Juvenile Court, he would very probably have succeeded in persuading the court that he was a "guardian" and thus would have been entitled to apply for separate representation before the court.   In this respect he contends that for the first 11 months of T's life he was the principal carer for the baby, in which circumstances he would be regarded as having been the person with "charge of, or control over" the child in the terms of the definition of "guardian" in Section 107 of the Children and Young Persons Act 1933.           As a guardian he would have been able to participate in the proceedings as set out above.   In fact, it appears from the affidavit of Miss W of 16 August 1983 (para. 10) that the Juvenile Court did allow the applicant to give evidence and the opportunity to cross-examine witnesses, which latter opportunity he did not take up. It does not appear however that he sought to argue that he was a "guardian" which would have enabled him to take a greater part in the care proceedings.   Had the applicant obtained legal custody, or joint legal custody with the child's mother under the guardianship legislation, he would certainly have been a guardian for the purposes of care proceedings.   In any event the applicant was entitled to notice of those proceedings under Rule 14 (3) (b b) of the Magistrates' Court's Children and Young Persons Rules 1970 and further had the opportunity of participating in the proceedings by virtue of the Court exercising its inherent jurisdiction.           Furthermore, the applicant had failed to take steps pursuant to the guardianship legislation to formalise his legal status vis-à-vis T.   The guardianship legislation governs relationships between unmarried parents of a child with that child, including the examination of custody, care and control, and access where such questions arise on the breakdown of a relationship between cohabitees.           Since the applicant knew for some time that T's mother had a serious mental health problem, the respondent Government submit that he should have taken the opportunity to secure recognition of the fact that he was the main carer for the child, if this was so, in the child's best interests, by applying for legal custody of the child. Had he done so, his legal status in relation to the child would have been secured in the event of any difficulties which might arise from actions taken by the mother due to her mental health problems.   Since the applicant had not taken such steps, his status towards T was not established, and he contributed to his own disadvantage in the subsequent proceedings which arose as to the child's welfare.           The respondent Government further argue that the applicant could have issued proceedings under the guardianship legislation, notwithstanding the existence of a care order in respect of the child. Although the two sets of proceedings could not have been heard together, since the care proceedings would be heard by a juvenile panel of magistrates, whereas a guardianship application could be heard by the Magistrates' Court as normally constituted, the respondent Government contend that an application for guardianship could have been heard immediately before the hearing of an application for a full care order.   The latter would have proved unnecessary if the applicant had been awarded custody under a guardianship application. That jurisdiction for such proceedings would have existed, notwithstanding the care proceedings, is confirmed in the Government's submission by the case of R. v.   Oxford Justices ex parte "D" (Judgment of 19 June 1986, unreported).           Furthermore, the applicant had the opportunity for a fair hearing before an impartial tribunal established by law in accordance with Article 6 of the Convention in the proceedings in wardship.   The originating summons was issued on 8 August 1983, but the summons for directions was only heard on 24 November 1983, which implies that the applicant did not apply to expedite the hearing following the commencement of the wardship proceedings.   Although the final hearing did not begin until 1 May 1984, the hearing listed for January 1984 was adjourned at the applicant's request.   There is considerable case law in England, which indicates that cases in which custody is disputed should be heard expeditiously, but the nature of legal proceedings in England and Wales requires those initiating such proceedings to take the initiative to pursue their remedies with vigour.   Until the application for expedition of the wardship hearing made on 10 February 1984, the applicant does not appear to have pursued his case with the necessary vigour.   He thereby appears to have contributed to the delay which he claims subsequently prejudiced his claim for care and control before the wardship court.   He nevertheless obtained a full hearing before that court, and subsequently on appeal to the Court of Appeal.           Having regard to the opportunities for access to the courts which were available to the applicant, but which he did not take, and to the hearing in the wardship proceedings in which he did participate, the respondent Government submit that there was no denial of the applicant's access to the court contrary to Article 6 para. 1 of the Convention, and that his complaints in this respect are manifestly ill-founded.           Article 8           The respondent Government contend that the decision of the local authority to prevent and subsequently restrict the applicant's contact with his son between 10 June 1983 and 24 November 1983 was in conformity with Article 8 of the Convention.           The Court affirmed in the Marckx case (Eur.   Court H.R., Marckx judgment of 13 June 1979, Series A no. 31) that Article 8 extends to family relationships outside marriage and the respondent Government accept that, to the extent that the applicant cared for T during the first months of his life, he was entitled to respect for this family life under Article 8 of the Convention.           It was open to the applicant to take proceedings under the 1971 Act, to establish his guardianship status in respect of T.   Had he taken this step at an early stage, before the child was removed from his home, he would have been afforded an adequate opportunity to secure respect for his family life.   Any court seised of proceedings under the 1971 Act would have given first and paramount consideration to the welfare of the child, but this would not have involved any breach of Article 8 from the applicant's point of view, since Article 8 para. 2 provides for the protection of the health of the child and his rights and freedoms, if necessary over and against a parent.           Since the applicant had failed to take guardianship proceedings, it was open to the local authority to take a decision in the interest of the child to prevent access by the applicant.   In the absence of any order under the guardianship legislation in favour of the applicant as father of the illegitimate child, the mother's rights in respect of such a child are greater than those of the father. Section 85 (7) Children Act 1975 provides: "except as otherwise provided by or under any enactment, while the mother of an illegitimate child is living she has the parental rights and duties exclusively".           In the present case the local authority considered it necessary to refuse and then restrict the applicant's access to T to ensure that the process of rehabilitation of T to his mother stood a reasonable chance of success.   In effect, the local authority were giving preference to the mother's rights to respect for her family life as opposed to the interests of the father when rehabilitation was considered.   Accordingly the local authority took account of the mother's wishes that the applicant should not have access to the child while the place of safety order was in operation.   The local authority took the view that great emphasis should be placed on providing the child with stability, a characteristic which had been absent from the first 11 months of T's life.   The applicant's behaviour and his effect on T's mother's behaviour were both factors which were taken into account and militated against allowing him acces